MADAN LAL Vs. CHIDDU

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit brought by him for recovery of Rs. 218 by a sale of a house hypothecated to him under the mortgage deed dated 20 November 1923 executed by defendant 1 Chiddu in favour of the plaintiff- appellant. Defendants 2 to 6 are the sons of the mortgagor. Defendant 7 is his wife. Defendant 8 is one Bal Kishen who purchased the house to which the mortgage deed in suit related at an auction sale held in execution of a simple money decree passed against Chiddu on 22 August, 1925. The suit was not contested at all by defendants 1, 4, 5, 6 and 7. Defendants 2 and 3 who originally contested it subsequently withdrew in favour of the plaintiff. Defendant 8 contested the plaintiff's claim on the ground that the mortgage deed in suit was executed by defendant 1 without any legal necessity presumably for immoral purposes. Both the Court is below have held that the mortgage deed in suit was not justified by any legal necessity. The learned Additional District Judge has gone further and found that the money advanced by the plaintiff under the mortgage deed in suit was borrowed by defendant 1 for gambling to which he was addicted, and that the plaintiff was fully aware of the absence of legal necessity for the loan which he advanced. He has not however found that the plaintiff was also aware that defendant 1 required money for gambling. In any case the finding was sufficient for the view which he took, namely that the mortgage deed in suit was invalid and not enforceable against the family or the family property to which the deed related.

(2.) It is contended before us, as was contended before the Courts below, that the members of the joint Hindu family to which the property in suit belongs are the only persons who can impugn the validity of the mortgage deed in suit and that defendant 8 cannot, by virtue of the auction sale at which he purchased, be considered to represent the interest of the entire coparcenary body. It is therefore argued that it is not open to defendant 8 to put the plaintiff to proof of the validity of his mortgage as one made for legal necessity.

(3.) The learned advocate for the appellant, Mr. K.D. Malaviya, who has argued his case with skill and ability, has placed before us all the authorities bearing on the question. The earliest case to which it is necessary to refer is Muhammad Muzam Ullah Khan V/s. Mithu Lal [1911] 33 All. 783, in which a subsequent purchaser who remained in possession adversely to the joint Hindu family for more than 12 years was held by the majority of the learned Judges composing the Full Bench to be competent to impugn the validity of a mortgage made by the head of a joint Hindu family on the ground of want of legal necessity. In this view it is obvious that the interests of all the coparceners were conveyed to the subsequent transferee who acquired it by adverse possession though originally he had obtained a transfer from one member alone. Chamier, J., went farther and held that the mortgage sought to be enforced not being proved to be, for legal necessity was invalid and could not confer any title; hence any party to the suit in which the question arises, being himself in possession, can put the plaintiff to proof of the validity of his mortgage regardless of the weakness of his own title. This view proceeds on the assumption that an alienation made by one member of the family without the consent of the other members, and without legal necessity is void and not merely voidable, and as such it can be ignored. Chamier, J., based his view on the authority of the Full Bench case of Chandra Deo Singh V/s. Mata Prasad [1909] 31 All. 176, which he treated as an authority for the proposition that a transfer made by the father without legal necessity conveys no title. Though he doubted that an alienation by one member of the family without the consent of the others and not for legal necessity is void and not voidable, he held in substance that it is void in so far as he maintained that it conveys no title. A transfer voidable in its nature is good till it is avoided by those at whose option it is voidable. Later decisions of this Court definitely hold that such a transfer is only voidable: see Jagesar Pande v. Deo Dat Pande A.I.R. 1921 All. 51. In a recent case Madan Lal V/s. Gajendrapal Singh it was assumed to be settled law, on the decisions of this Court of which the case last noted is an instance which proceeds on the authority of two Madras cases and a case of this Court, viz. Sheo Ghulam V/s. Badri Narain Lal [1913] 19 I.C. 560.